help- H1-B and getting laid off

C

canadianbacon

New Member
Hi- I was given time to find a new job due to the market (i.e. laid off). I am a canadian with an H1-B expiring in Sep 2008, and current employment will terminate on April 14th. I have been advised to file an I-539 to change my status to a B2 (visitor) and then to switch back to my current H1-B when I find a new employer. A couple questions I would appreciate being answered:
1) is this advice consistent?
2) do I forfeit H1-B portability if I switch to B2 by filing I-539 (and eventually switch back to H1-B)?
3) does it matter that current H1-B expires within 6 months?

Thanks in advance.
 
1. Yes
2. Yes, you need to wait for approval of the new H1b with I-94 to start work if there is a gap in your H1b status. This can be done using PP for faster results. AC21 requires you to be in valid H1b status to start work for new employer. the AC21 memo states "status", but common interpretation is H1b status.
3. I am not sure I understand this question. It should not matter if you have not completed 6 years from your H1b.
 
thanks- very helpful. What is a PP? and by reading your response, I assume that by using this method I will be subject to H1-B cap (i.e. it will be like applying for an entirely new H1-B).

My third question was formed under the assumption that I could transfer back into my old H1-B and therefore wondered if there was any minimum required remaining time for porting the visa.
 
You can look for the job as being out of status if it's not very long. You can try B2 too.
 
carry me said:
PP ?= Premium Processing
Click to expand...

Yes. And no, once you are cap counted, you don't need a new H1b. Just proof of prior H1b approval will suffice to get a H1b transfer.You can transfer the H1b to a new company as long as the 6 years were not used up.

AC-21 permits certain individuals originally authorized to perform H-1B employment with one employer to commence H-1B employment with a new employer upon the filing (not approval) of new petition if:
(A)
they were lawfully admitted into the United States;
(B)
their employer filed a nonfrivolous H-1B petition for new employment before the expiration date of their authorized period of stay; and
(C)
subsequent to such lawful admission, were not been employed without authorization in the United States before the filing of such petition.


There is some gray area as to if portability applies to one that has applied for B2 status after losing H1b status or not. Based on the above, it may sound like portability is possible. But, it is a gray area. Hence I suggested PP.
 
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